In a major legal victory, a judge has decided in a Ross Feller Casey obstetric malpractice case that a jury should determine whether stillborn twins were capable of feeling pain while in the womb.

Lackawanna County Judge Terrence R. Nealon ruled that plaintiff’s lawyer, founding partner Matt Casey, provided sufficient evidence that fetuses at 33 weeks indeed feel pain, and that he would allow such testimony at the upcoming trial in Page v. Moses Taylor Hospital, which is scheduled to begin May 25 in Scranton.

"There is scientific support for the ­conclusion that viable fetuses at 33 weeks' gestation have the cortical, subcortical and neurochemical capacity for conscious ­perception of pain,” Nealon said.

The defense unsuccessfully petitioned the court to preclude such testimony from a plaintiff’s witness from being offered during the trial, arguing it amounted to “novel science.”

Among other things, the lawsuit involves negligence by doctors in the diagnosis and treatment of preeclampsia during Jo Ann Page’s first pregnancy that led to the stillborn birth of her twins at 33 weeks. As a result of the negligence, Jo Ann Page also suffered catastrophic physical and emotional injuries.

“She almost died. Had they delivered the babies sooner, it would have prevented their death and the catastrophic physical and emotional injury to their mother,” Casey told The Scranton Times-Tribune (read story).

The legal victory over the pain issue substantially increases the amount of a potential jury verdict.

Casey told The Legal Intelligencer newspaper that there was no basis upon which to file the motion to preclude the testimony “in the first instance and, accordingly, we were pleased but not surprised with Judge Nealon's decision."

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